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Suppose, in the weeks after 9/11, I had fired a longtime employee
who happened to be a Muslim because I was afraid my emotions
might have led me to behave inappropriately.

You might expect my former employee to sue me for illegally
discriminating on the basis of her religion. You would probably
further expect that I would lose that lawsuit. And you probably
would not expect this result to change simply because I happened
to hire another Muslim to replace the fired employee. The issue,
after all, would not have been whether I illegally discriminated
against all Muslims on the basis of their religion; the issue
would be whether I illegally discriminated against the particular
individual I had fired.

Nelson, a married mother, worked for dentist James Knight for
more than a decade. He reportedly said she was the best dental
assistant he ever had. But Knight became sexually attracted to
Nelson, and when the dentist’s wife – who also worked in his
office – discovered this, she forced him to choose between his
assistant and his marriage.

Whatever his skills as a dentist, Knight does not sound like a
man whose personal charm would often sweep females off their
feet. He allegedly told Nelson that if she saw his pants bulging,
she would know her clothes were too revealing. He once texted her
after work to complain that the top she’d worn that day was too
tight. When she protested that this was unfair, he replied that
it was good that she had not worn tight pants too, because then
he would get it coming and going.

Nelson did not appear to let these comments bother her. She
testified that she saw her boss as a father figure, and that she
respected him but did not flirt with him. They began exchanging
after-work text messages about six months before she was fired.
Some were innocuous notes about their families; others went
further. Nelson said she ignored one text in which her boss asked
how often she experienced an orgasm. She never complained or
asked him to stop, however.

Things went south when Jeanne Knight, the dentist’s wife,
discovered the texts. She and her husband consulted their pastor,
who agreed that if the Knights’ marriage was to be salvaged,
Nelson had to go. The dentist thereupon summoned his assistant to
a meeting, attended by another pastor, at which he fired her. He
gave her a month’s severance pay. Nelson’s husband later spoke to
Knight, to no avail. Knight told Steve Nelson that he was afraid
that he would not be able to resist pursuing an affair if Nelson
remained his employee.

Nelson and her lawyers thought they had a pretty good case under
the Iowa Civil Rights Act, which
makes it illegal to “discharge any employee…because of the age,
race, creed, color, sex, sexual orientation, gender identity,
national origin, religion or disability of such…employee, unless
based upon the nature of the occupation.”

But the fired employee never got the chance to present her case
to a jury. An Iowa district court judge dismissed her suit,
and the state Supreme Court
agreed, ruling that Nelson was fired not because of her
gender, but because “she was a threat to the marriage of Dr.
Knight.” In other words, Nelson lost her job not because she was
a woman, but because she was a woman whom the dentist found
dangerously attractive.

The precedents cited by the Iowa courts were mainly instances in
which the fired employee engaged in consensual sex, or at least suggestive
behavior, with a boss. In other cases, employees who were not
involved in intimate relationships with a supervisor complained
of favoritism toward a co-worker who was. In one case, the owner of a
family business fired a female employee who worked with his son
because the son’s wife became jealous without apparent reason.

“So the question we must answer is…whether an employee who has
not engaged in flirtatious conduct may be lawfully terminated
simply because the boss views the employee as an irresistible
attraction,” Justice Edward Mansfield wrote for the unanimous
seven-member court, which happens to be all male.

“We ultimately think a distinction exists between (1) an isolated
employment decision based on personal relations (assuming no
coercion or quid pro quo), even if the relations would not have
existed if the employee had been of the opposite gender, and (2)
a decision based on gender itself,” Mansfield concluded . “In the
former case, the decision is driven entirely be individual
feelings and emotions regarding a specific person. Such a
decision is not gender-based, nor is it based on factors that
might be a proxy for gender.

“The civil rights law seeks to insure [sic] that employees are
treated the same regardless of their sex or other protected
status. Yet even taking Nelson’s view of the facts, Dr. Knight’s
unfair decision to terminate Nelson (while paying her a rather
ungenerous one month’s severance) does not jeopardize that goal.
This is illustrated by the fact that Dr. Knight hired a female
replacement for Nelson.”

The Iowa justices apparently do not consider Nelson’s
irresistibility, in her employer’s eyes, to be a factor “that
might be a proxy for gender.” And they apparently believe the
Iowa statute is not violated by an adverse action against just
one member of a protected group, though the statute seeks to
protect “any employee.” The court is willing to give the employer
at least one freebie. Mansfield himself wrote, “What if Dr.
Knight had fired several female employees
because he was concerned about being attracted to them? Or what
if Ms. Knight demanded out of jealousy that her spouse terminate
the employment of several women? The short
answer is that those would be different cases.”

If this strikes laypeople as nonsensical, that’s because it is.
If I run a lunch counter, I don’t get to exclude one person from
sitting at it because of his skin color as long as I allow other
members of his race to dine freely. We settled this principle
nearly a half-century ago.

Nelson v. Knight strikes close to home for me
because my professional circumstances are much like the
dentist’s. I own a business and my wife works there. In fact, she
is in charge of hiring at our firm. For what it’s worth, I think
our employees are all fine-looking people, regardless of gender.

But I run a business, not a harem. The people who work for me
have bills to pay and households to support. As I see it, the law
– as well as common decency – entitles them to a boss who does
not inject matters like race, religion and sex into their work
lives, and then makes them pay the price when someone else takes
offense.

Let’s keep it simple: Any text or email that a boss sends to an
employee ought to be one that either party’s spouse can read
without cause for concern or embarrassment.

The law does not protect bosses from abuse by employees because
it simply does not need to. An employer can insist that employees
behave professionally and courteously, on pain of termination. As
the Iowa court pointed out, case law already holds that an
employer can fire an employee who consensually enters into an
intimate relationship, even if the firing is unfair. The employee
at least had control over his or her own conduct.

We cannot know at this point whether Nelson is wholly an innocent
victim. It is possible that her conduct did, in fact, give her
boss’s wife cause for concern. That is an issue that should be
decided at a trial. The problem is that Nelson was not given a
chance to have one. (Her lawyers have asked the Iowa Supreme Court
to rehear her case, but such reconsideration hardly ever
happens.)

My employees sign agreements when I hire them, which note that
either of us has the right to terminate the arrangement at any
time, for any reason. This is called an “at-will” employment
contract. But anti-discrimination laws constrain such agreements.

I have the right to fire an employee for no reason at all. But I
don’t have the right to fire her because she is a woman; the law
has stripped me of that power. It follows that I therefore have
no right to fire her because she is a woman whom I happen to find
attractive. The law makes this my problem, not hers. If that is
not clear to the courts by this late date, legislators ought to
spell it out for them, ASAP.

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